The New Yorker Blog on the OBL Rules of Engagement

At The New Yorker blog, a useful discussion of the legal issues in the OBL attack. As Raffi Khatchadourian writes:

What was true in Iraq and in the Second World War also applies in the ongoing conflicts in Afghanistan and Pakistan. Targeted air strikes are status-based operations. The drone strikes are status-based operations. Raids conducted by Special Forces to kill key militants—as in the case of Abu Musab al Zarqawi, who was killed in Iraq by Special Forces working under the command of General Stanley McChrystal—are status-based operations. A status-based target can become a non-combatant (that is, illegal to kill) only if he is wounded to the point where he no longer poses a threat, or if he is in the process of surrendering. This is why Eric Holder said, during a recent Congressional hearing, that if bin Laden “had surrendered, attempted to surrender, I think we should obviously have accepted that, but there was no indication that he wanted to do that, and therefore his killing was appropriate.” In such a circumstance, the law suggests that the onus is on the target to immediately revoke his combatant status. Soldiers do not have to wait.

The executive director of Human Rights Watch, Kenneth Roth, has criticized the White House for its public handling of the killing. He recently wrote on Twitter, “White House still hasn’t clarified: OBL ‘resisted’ but how did he pose lethal threat to US forces on scene? Need facts.” This may be a worthwhile thing to know for broader ethical or policy or tactical reasons, but it is not the most pertinent question when judging the action against our existing military laws. The key legal question is not whether bin Laden was armed before he was killed, or even whether or not he posed an immediate “lethal threat,” but whether he was “positively identified” before the trigger was pulled, and whether Holder is accurate when he says that “there was no indication” that bin Laden was actively attempting to surrender. Those are the more relevant facts.

That is correct, at least as far as how I understand the US government would see the legal situation, and very well put (my emphasis above).  I have two modest legal criticisms of Khatchadourian’s fine piece.

One is that the US executive order banning assassination is much narrower than many commenters seem to understand, to judge by the amount of ink spilled over asking about the meaning of assassination and so on.  The term is not defined in the order itself, and the US government’s interpretation — stated in 1989 by then-Legal Adviser to the State Department Abraham Sofaer and re-stated in 2010 in current Legal Adviser Harold Koh’s ASIL speech — is that the assassination only applies to a killing that is otherwise unlawful.  If the killing is otherwise lawful — such as the targeting of a lawful target — then it does not apply.

If that looks like the assassination ban does no independent work, since it is merely a ban on something that is already unlawful, that is perfectly correct.  It is also consistent with the history of the executive order, which seems to have been a 1970s concession to a Congress investigating the CIA to affirmatively state something in a single sentence with an undefined term, easy to say and not much at stake except rhetorically.

The second is to emphasize that surrender is an act that requires completion, and is harder to accomplish that one might have thought merely reading the law in the abstract.  I emphasize this because I have had so many conversations privately in the last week with JAG or former JAG who have advised on the rules of engagement on which Khatchadourian is writing.  These are not high level political decisions; these are the rules for relatively routine, tactical engagements undertaken every month in Afghanistan by special ops teams.  Those rules have been worked out over years — and when the operation is intended to be lethal, the reliance is upon speed and surprise, and killing the target before the confusion lifts. These JAG emphasize the risks involved in “pausing” operations that depend fully on surprise in order to see if someone is trying to surrender for real; they have no legal obligation to do so — and don’t.  The manifestation of clear intent to surrender is much more complicated and much more fraught than it might seem to a human rights monitor merely reading off an abstract rule.

These folks are concerned that the traditional legal interpretation of surrender might be eroded if the Bin Laden operation were to cause a highly technical act in tactical operations to become politicized.  They worry particularly about interpretations given by high level political appointees who, worried only about putting the best light on the OBL operation, wind up making implicit concessions on the rules of surrender that are not the current understanding of the law for operations involving many ordinary but lawful targets down the road. One would not want, for example, an Eric Holder defending the OBL attack by saying something like — had he so much as raised a hand, we would have stopped to ask if he was surrendering, but he didn’t so we didn’t.  It is not the legal standard, and might undermine future combat missions by implying that it is.

(See also the communication to Ben Wittes at Lawfare by an active duty Navy JAG, Michael Montgomery, writing in his personal capacity.)